Whether a creditor of an incorporated foundation may file a claim against the incorporated foundation for the implementation of the procedure for filing an application for disposition of basic property (negative)

Since a foundation has granted a legal personality to the entity that is a property that has been completed for a certain purpose, that is, the foundation's basic property is the most fundamental means to carry out the purpose of the foundation at the same time as it is the entity of the foundation. Therefore, the foundation's basic property cannot be disposed of without permission. Barring special circumstances, whether the foundation applies for permission of the competent authority for the disposal of the basic property resulting from the modification of the articles of incorporation or not is entrusted to the intent of the foundation. Thus, even though it is impossible to repay debts without disposal of the basic property due to the absence of other property of the foundation, the foundation has no authority to request the competent authority to apply for permission for the disposal of the basic property against the foundation, not a person who takes over the basic property from the foundation, but a person who is a pecuniary claimant, who does not wish the disposal of the basic property, on the ground that it is necessary

Articles 43, 45, and 389(2) of the Civil Act

Plaintiff (Appointed Party)

Integment Park (Attorneys Ji-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na41587, 41594 delivered on April 1, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (appointed party).

We examine the grounds of appeal by the Plaintiff (Appointed Party).

Since a foundation has granted a legal entity to an entity that is a property that has been completed for a certain purpose, that is, the foundation's basic property is the most fundamental means to achieve the purpose of the foundation, and at the same time, to dispose of it as the substance of the foundation foundation's foundation's foundation's foundation's foundation's basic property cannot be disposed of without permission. Thus, the foundation's basic property cannot be disposed of without permission, and whether the foundation applies for permission of the competent authority for the disposal of the basic property that incurs an amendment to the articles of incorporation is entrusted to the intent of the foundation unless there are special circumstances. Thus, even if it is impossible to repay debts without disposal of the basic property because there is no other property of the foundation that is the debtor, the foundation's basic property is not acquired from the defendant foundation's foundation's basic property, and the plaintiff and the designated parties who are only monetary parties do not wish to dispose of the basic property, the foundation has no authority to request

In the same purport, the judgment of the court below which dismissed the plaintiff's claim against the defendant, a foundation foundation, for the implementation of the procedure for filing an application for permission to dispose of the basic property of this case is just, and there is no error of law such as the forced performance claim like family litigation theory, misunderstanding of legal principles

In addition, even if the building in this case was erroneous in the judgment of the court below that it is not the basic property of the defendant foundation, if it is true, it is unnecessary to obtain permission from the competent authority for the disposal of the building in this case, and thus, the plaintiff's claim for the part cannot be accepted ultimately. Therefore, the judgment of the court below's error does not affect the conclusion of the judgment.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)